The South Dakota Referendum on Abortion: Lessons from a Popular Vote on a Controversial Right

Earlier this year, the South Dakota legislature passed a stiff anti-abortion bill, H.B. 1215, designed to test the durability of Roe v. Wade. Soon thereafter, the bill’s opponents collected enough signatures to put the Act on the South Dakota ballot. South Dakota voters will reject or affirm the Act by a popular vote on November 7. The Act’s legislative history and effects on public discourse merit investigation and offer two valuable lessons for other states.

The declared purpose of the South Dakota Act is to offer the Supreme Court an opportunity to overturn its landmark decision in Roe v. Wade. The Act states that physicians and others who perform abortions commit a felony unless the procedure is “designed or intended to prevent the death of a pregnant mother.”Anyone aiding in contraception is not included if the aid is administered “prior to the time when a pregnancy could be determined.”

The South Dakota experience offers two important lessons for other states. First, it reveals that the referendum process is a useful method for handling controversial issues. Referenda promote public discussion and debate, educate voters on important policy matters, and cause voters to pay attention to the actions of their elected representatives. Those who lose at least feel included in the resolution of the issue, for they had a chance to persuade their fellow citizens. They also know that all is not lost if they lose one vote: they can continue the public discourse and try again in later elections. There is the hope that if states would more frequently use referenda on controversial issues, the procedure would increase the legitimacy and decrease the polarization of law on controversial questions. Many commentators believe abortion would be less divisive if routinely subjected to popular vote, and South Dakota will put their view to the test.

All state legislatures can choose to put a legislative referendum on the ballot. Indeed, the South Dakota Senate explicitly refused the option. It was left to the citizens of South Dakota to force the issue by petitioning for a popular referendum, which leads to the second lesson.

The second lesson from the South Dakota experience is that state courts should carefully scrutinize the “emergency clauses” frequently present in legislation. All twenty-four state constitutions that provide for a popular referendum procedure have an exception for legislative declarations of urgency and, often, a second exception for certain appropriations measures. The South Dakota Constitution’s language on referenda is typical:

[T]he people expressly reserve . . . the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health, or safety, support of the state government and its existing public institutions.

When funding government institutions is not at issue, as is true of an anti-abortion act, legislatures that want to preclude a referendum on a new statute can insert an emergency clause with language that parrots the constitution’s exemption. Cautious legislatures can also add factual findings in the act’s preamble to support their assertion of urgency. Popular referenda are rare in part because legislatures frequently attach such clauses (or the “support clauses,” if pertinent) to their new acts.

The South Dakota legislature’s decision not to include an emergency clause is puzzling given the state’s refusal to use a legislative referendum. Such a clause could have foreclosed the possibility of the upcoming popular vote. The legislature probably did not fear judicial rejection of the clause. The state courts, following the case law of other states, most likely would have deferred to the legislative declaration and rejected any effort to have the emergency clause declared void.For example, the Supreme Court of Washington has held that legislative declarations of emergency are “conclusive” unless “obviously false and a palpable attempt at dissimulation.”

Another possibility is that legislators were concerned the legislation would not satisfy the South Dakota Constitution’s supermajority requirement for emergency clauses. However, the South Dakota House’s vote on H.B. 1215 was solid enough to ensure passage by the required supermajority, and the Senate’s vote, while closer, might have passed as well.

The most likely reason the legislature did not include an emergency clause—and hence, the only reason the South Dakota measure is eligible for popular vote—seems to be a legislative miscalculation. Apparently the legislature, anticipating an immediate court challenge, failed to take seriously the possibility of a popular referendum. The sponsors apparently believed that opponents of the Act would prefer the expediency of filing a quick court challenge over the time and effort required to gather 17,200 signatures.

The events in South Dakota reveal a latent problem with the typical, excessive judicial deference to legislatures on emergency clauses. The South Dakota legislature, using an emergency clause, easily could have frustrated the popular referendum on H.B. 1215 that the country is so closely following. Courts should take a careful look at the bona fides of emergency declarations under a more restrictive test than what is essentially “the legislature must, beyond a doubt, be lying.” Closer scrutiny would limit emergency clauses to true emergencies and could unlock the salutary effects described above.

Given these lessons, the South Dakota popular vote is a success even before it has been held. The public debate over the referendum has been healthy and spirited. The legislatures of other states should take heed and, if they desire to legislate on abortion, they should put the matter to a popular vote voluntarily in a legislative referendum or, by omitting an emergency clause from the legislation, permit their citizens to petition for a popular referendum.

Dale A. Oesterle is the holder of the Reese Chair at the Moritz College of Law, Ohio State University. He is a fellow of the school’s Election Law Center, writing on initiatives and referenda.

Preferred Citation: Dale A. Oesterle, The South Dakota Referendum on Abortion: Lessons from a Popular Vote on a Controversial Right, 116 Yale L.J. Pocket Part 122 (2006), http://yalelawjournal.org/forum/the-south-dakota-referendum-on-abortion-lessons-from-a-popular-vote-on-a-controversial-right.